Oh, and Schilling won't pitch in Game 5. Sheesh. The guy is 20-6 and pitches well against the Twins, and gets hurt NOW? This is why I thought the whole Red Sox/Yankee series would be lame: they'd find a way to lose. Oh, they might go far still, but win? The "Who's Your Daddy" chant got annoying, though might have helped the Yanks get a key first inning run. If the Astros could have survived the sixth, their game would have been more interesting. The Yanks beating Pedro is getting old. The talk now is the Yanks signing Pedro. Well, that's one way to go.
[Originally written in response to Dahlia Lithwick's column; slightly edited pursuant to some comments.]
As someone who feels the death penalty is basically unconstitutional on procedural and constitutional morality grounds (those of concern when we determine "cruel and usual"), it is sometimes hard for me to selectively argue against it.
I just don't know if 18 is some "magic age" in which we can determine worthiness to die. Any number of people much older are functionally children. So why that line? I guess I'm left with a messy "well it's the best we got" argument. It is somewhat unprincipled, but no more or less than various other constitutionally drawn lines, some of which even Mssrs. Scalia and Thomas might support.
The approximate median age of adulthood (16-21) seems the appropriate point. For instance, as someone pointed out to me, military service (or in my case, college) can start at seventeen. On the other hand, voting is eighteen. And, in some cases, twenty one is the age (drinking, entry to certain clubs). So though my preference would be the high end, society and the international community thinks of eighteen as the proper age. So be it.
Finally, determining what is cruel and unusual is in part a matter of nose counting. If a certain penalty is barely used or not even allowed, at a certain point it is constitutionally unusual (usually because it is deemed cruel). And, yes, from the times of the Declaration of Independence, world opinion has some value in so determining such things. This too counsels us to make 18 the age. If it's the best we can do.
And, what about those evil sounding killers Justice Kennedy referenced? First off, the heinous nature of a crime alone doesn't justify a cruel and unusual punishment. There are cruel crimes committed by thirteen years old (15 is the dividing lines for capital punishment these days). In fact, quite a few cruel murders do not bring the death penalty for any number of reasons.
Second, and Malvo might actually be a prime example, the cruelty should not mask the lower level of capability often present when minors are involved. The separation of the wheat from the chaff, so to speak, is an imperfect science. Probably too much given the penalty itself is troubling. This is why we are extra careful with it, and why cries that this will mean teens will get "breaks" for other crimes are ill advised (though predictable).
Finally, it is not like these people will be out on the street in at twenty one with a few bucks in their pockets and a bit more buff given their gym time. We are talking about the prohibition of one type of penalty. A set rule based on reduced capability and developments of (constitutional) moral decency in which a person under eighteen is put in the same class as a non-death penalty eligible first degree murderer is not necessarily liberal moddle-coddling of the highest order.